Sunday, October 16, 2005

disability - MS - Listing 11.09(C) - treating physician - credibility

Fisher v. Barnhart - ED Pa. - October 12, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1250P.pdf

Summary judgment granted to Plaintiff/claimant, a 44 y/o woman with multiple sclerosis (MS). She had a h.s. education, some college, and prior work as accounts payable clerk. She alleged disability as of August 1990 and had date last insured (DLI) of December 1991.

remission/consistency of severe symptoms/ fatigue/listed impairment - The ALJ found that claimant had a period of remission before her DLI, and that she did not have a severe impairment as of that date. The court rejected this, nothing that the 3d Circuit has not addressed MS specifically, but citing precedent from the 6th and 9th Circuits holding that MS "can be disabling notwithstanding normal activity in a period of remission....Although a patient may be in remission, she is not necessary symptom free." (citing an ED Mich case). For instance, Plaintiff's physicians testified that she suffered from fatigue, that her MS was "long standing in nature" and "involved extreme fatiguability which is an intrinsic part of the disease" which made her unable to do basic work activities on a "regular and continuing basis" as defined in SSR 96-8p. The "persistent fatigue" and other factors reported by her doctor supporting a finding that she met listing 11.09(c) from a date prior to her DLI to the present.

treating physician report - The ALJ did not give sufficient weight to the report of claimant's treating physicians. The 3d Circuit has said that such reports should be accorded great weight, especially when they reflect expert judgment which is the product of continuing observation over a long period of time. "In fact, 'absent persuasive contradictory evidence, the validity of the claimant's symptoms can be conclusively established by the opinion of the treating physician." (citing ED Pa. case)

ALJ's lay observation/opinion -- The court found that the "ALJ substituted her own lay understanding of Plaintiff's MS, an entirely improper substitution. The Third Circuit has made clear that 'an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.'" (citing 3d Cir. cases).

credibility/pain/homemaker & childcare activities -- The ALJ found claimant's complaints of pain to be not credible, because she voluntarily left the labor force in 1986, was a homemaker, and cared for her children. The court found this focus on her homemaker status "misplaced" because when she left the workforce, she had not yet suffered the onset of MS. Moreover, her credible testimony, backed by her physicians, was that "her MS-related fatigue was severe while she raised her children" and that she needed her from both her mother and a part-time nursery school for the children.

Donald Marritz
MidPenn Legal Services

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